The Role of Courts: Who Decides on the Right to Kill?

“Having the executive being the prosecutor, the judge, the jury and the executioner, all in one, is very contrary to the traditions and the laws of this country.”—Senator Angus King

While information on the processes behind executing a drone strike remain closely guarded, what has leaked out indicates that all decision-making remains exclusively with the executive branch. Given the American tradition of checks and balances, the judiciary should theoretically play an important role in determining not only the legality and parameters of lethal drone strikes but the legal reasoning behind them. However, courts (both domestic and international) have so far largely remained silent on the issue. U.S. courts seem unwilling to wade into the debate—in a 2010 lawsuit over the placement of a U.S. citizen on the kill list, the U.S. District Court for the District of Columbia dismissed the case, ruling that it raised “political questions” as a policy issue that are not subject to judicial review. International courts face institutional obstacles that already limit their authority in other areas of international law and doctrine that are less complicated than an issue like targeted killing. Domestic and international judicial systems seem unlikely to play a significant role in the right to kill debate, at least in the near future.

Domestic versus International Courts

Domestic and international courts have been more or less equally quiet on the right to kill—though for different reasons. A handful of lawsuits relating to drone strikes have made their way through the U.S. court system. However, most decisions either address only specific issues or essentially remove the judicial branch from the debate. In Al-Aulaqi v. Obama, the 2010 lawsuit concerning the lethal targeting of a U.S. citizen, the D.C. District Court avoided ruling on the legality of the right to kill by dismissing the case on procedural grounds (in addition to the case raising “political questions,” the court also held that the plaintiff—the father of Anwar Awlaki—did not have legal standing). In his decision, Judge John Bates did note that, “the serious issues regarding the merits of the alleged authorization of the targeted killing of a U.S. citizen overseas must wait another day.” However, it is unclear when that day may be. The ACLU—which filed the case on behalf of Awlaki’s father—called the ruling a “profound mistake” that would “allow this unparalleled power to be exercised free from the checks and balances that apply in every other context.” The executive branch itself has adopted a similar legal reasoning for excluding courts from the debate. In its leaked white paper, the Department of Justice argued that judicial intervention “would require the Court to supervise inherently predictive judgments by the President and his national security advisors as to when and how to use force against a member of an enemy force.” While this may change depending on the ways in which drones proliferate both domestically and abroad, U.S. courts so far have excused themselves from making any meaningful contributions to right to kill doctrine.

International courts have their hands tied for different reasons—in general, international legal bodies still face inherent institutional limitations that hinder their influence over member states, especially powerful nations. The court most likely to play some role in the right to kill debate is the International Court of Justice (ICJ), the U.N.’s primary judicial branch. However, it is not fully independent of the U.N., and permanent members of the Security Council are able to veto the enforcement of any decisions at any time. It is hard to imagine a circumstance in which the U.S. as a permanent member would not exercise this power, particularly when it concerns its national security, although it is equally unlikely that such a case would not have been dismissed long before an ICJ judgment was necessary. For the time being, however, we may see more instances of individual states asserting themselves through judicial means—even if their courts’ decisions are not binding to other states. In May 2013, a Pakistani court ruled that drone strikes are “criminal offenses,” “war crimes,” and a “blatant violation of human rights.” The presiding judge also called on the U.N. to intervene. In October 2013, the current U.N. special rapporteur on extrajudicial killings, Christof Heyns, cited his concern over the “lack of consensus” in the international legal framework for the use of lethal drones. The growing number of voices inside and outside the U.N. may force it to seek a more active role in helping to define right to kill doctrine more clearly within international law.

Drone court?

Another possibility to insert some judicial review into the drone strike process is the creation of a “drone court.” Potentially modeled after the FISA-created surveillance court, the administration would be required to present evidence to the appointed judges in order to place a suspected terrorist on the kill list. Like the surveillance court, all proceedings and decisions would be confidential. Several lawmakers have already voiced support for this idea, including Senators King, Feinstein and Wyden. However, drone courts also faces legitimate criticisms—it will just be a “rubber stamp” like the surveillance court, it adds no transparency to the process, targeting decisions need to be made faster than a court can respond to. Another alternative is the idea of an oversight board or “national security court” still located in the executive branch, with the idea that decisions can be made quickly while adding a somewhat independent bureaucratic layer into the process. President Obama noted of both these options in his May 2013 drone policy speech, suggesting his support for oversight in theory but arguing it is difficult to put into practice. All these ideas gained traction among the public in the earlier months of 2013 but seem to have died down since. The lack of serious effort to include the judiciary, at least in the U.S., suggests it will continue to play a minimal role in the right to kill debate.